Over at the Volokh Conspiracy, Akhil Amar recently had a long post
on freedom of speech. Akhil takes issue with the post by Richard
Posner that had criticized Scalia and Garner for not following the
narrow Blackstonian understanding of freedom of the press as the
original meaning. Readers will remember that I had criticized Posner on the same grounds. As I did, Akhil relies in part on Eugene
Volokh’s scholarship on the original meaning of the First Amendment.
Akhil
raises a separate issue, which he and others have discussed before:
While it is possible that freedom of the press was intended to restrain a
licensing regime regarding the press, it seems extremely unlikely that
freedom of speech was intended to restrain a licensing regime for
speech. Back in England, the King did require preapproval of
publications. Requiring preapproval of all speech seems so impractical
as to be inconceivable. Akhil therefore seeks an alternative basis for
freedom of speech in the freedom of speech of legislators, which is
definitely a possibility.
I will say, though, that the rejection
of the licensing or preapproval interpretation of freedom of speech is a
little fast. It is certainly true that one could not imagine licensing
for all speech. But one could certainly imagine a government licensing
public speeches or speeches to more than a certain number of people.
I don’t mean to endorse this interpretation. But I am not sure that it is mistaken either.
(Cross posted at the Liberty Law Blog)
Posted at 2:07 PM